On December 28, 2019
Transparency In Judicial Appointments
Quis custodiet ipsos custodies? is a satirical query posed by poet-philosopher named Juvenal in Ancient Rome which literally means “Who will guard the guards”. In our jurisprudence the superior court judges act as a conscious keeper of the Constitution and ultimate protector of the rights of citizens and the society at large. The law in the Supreme Court’s own words is ‘be it enacted or customary, is what the courts interpret and finally enforce’.
So with this backdrop, the superior courts being the final arbiter of all disputes and being the court of last resort, it has become even more important to have the most eligible person for the job. Being a constitutional appointment where security of tenure is an absolute pre-condition for independence of judiciary, the only main check is at the initial appointment. The appointment to any public office is a sacred trust in which the process must be above board, devoid of even the slightest taint of favoritism.
The process for appointment of superior court judges is provided in Article 175-A of the Constitution. It is a two stage appointment process where there is the all powerful judicial commission and a parliamentary committee. The process requires independent assessment of all nominees at both stages. The judicial commission comprises of thirteen members which includes eight Honourable Judges and parliamentary committee consists of eight members, selected from both houses of the parliament. The new process introduced through the eighteenth amendment in 2010 was a departure from the past practice where the Chief Justice had the final say in appointment of judges. The new process was envisaged to bring transparency by involving the collective wisdom of two high powered bodies. However, soon thereafter Article 175-A came up for judicial interpretation before the Honourable Supreme Court in Munir Bhatti’s case (Munir Hussain Bhatti v Federation of Pakistan PLD 2011 SC 407) when the recommendations of the judicial commission were not confirmed by parliamentary committee. The Supreme Court in the said case held that parliamentary committee cannot question the caliber, legal acumen, judicial skill and quality of the nominee if he has been approved by the judicial commission. The court further observed: ‘We are thus unable to see the technical expertise, judged by a (Judicial) Commission comprising of people having spent decades in the legal filed, could be better judged, or worse, reversed by the Parliamentary Committee. If this was intended by the legislature then there was simply no need to even constitute Judicial Commission”.
Since the Munir Bhatti’s case the judicial commission has the final authority for the most part and the role of parliamentary commitee has been greatly reduced and is superfluous. Some may even argue now that we have gone to the past practice of ‘judges appointing judges’.
With the present process especially in the appointment of the High Court Judges, the most important role is that of the respective Chief Justice of the Province. As per Section 3 (2) of the Judicial Commission of Pakistan Rules, 2010 it is only the respective CJ of the Province who can initiate the names of the candidates for consideration by the Judicial Commission. It is interesting to observe that there are no guidelines (at least in the public domain) as to how the respective CJ will short list lawyers except the constitutional requirement of the nominee being more than forty five years of age and having 10 years standing as an Advocate of the High Court. There is no way the general public can ascertain or access the reasons that may have motivated the CJ of a particular province to select a particular name. This initial and crucial step in the judicial appointment process leaves a lot of unfettered discretion as to who will be even considered for selection. In the current process even when a candidate is short listed let alone appointed, the public has no way to find out as to why a particular candidate is chosen over the other. It has been time and again held by our superior courts that the concept of absolute, unfettered or unguided discretion by public authorities is treated as alien to the essence of rule of law. At this stage, it imperative to introduce publicly known guidelines in short listing of a particular candidate over the other for instance the number of reported judgments or years of standing before the supreme court etc. so that the discretion is structured and process becomes more fairer.
Also when a particular short listed candidate is selected or rejected by the judicial commission, the general public or even the legal fraternity cannot find out the reasoning for such decisions as the proceedings are in camera and the minutes are never made public.. Thus the judicial commission can further increase the confidence of the masses by at least disclosing the minutes and especially the dissenting comments of the members of commission (if any).
Every time and this is without exception that when judges are appointed, there is surprise and resentment on certain names from both the bar and the general public due to lack of transparency in the system.. The process might be absolutely fair and unexceptional but it is shrouded in secrecy. It goes without saying that independent judiciary is bedrock for all civilized societies and the confidence of the public will be further strengthened in our judicial system if the appointment process is more transparent and inclusive.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
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